Bonkowski v. Arlan's Department Store , 12 Mich. App. 88 ( 1968 )

12 Mich. App. 88 (1968) 162 N.W.2d 347

BONKOWSKI
v.
ARLAN'S DEPARTMENT STORE.

Docket No. 3,666.

Michigan Court of Appeals.

Decided June 26, 1968. Leave to appeal granted September 4, 1968.

van Benschoten & van Benschoten, for plaintiff.

Heilman, Purcell, Tunison & Cline, for defendant.

Leave to appeal granted September 4, 1968. See 381 Mich. 773.

NEAL E. FITZGERALD, J.

This appeal from a jury verdict for false arrest and slander, rendered against the defendant store whose agent stopped and questioned the plaintiff whom he suspected of larceny, surprisingly presents questions that are novel to the appellate courts of this jurisdiction.

The plaintiff, Mrs. Marion Bonkowski, accompanied by her husband, had left the defendant's Saginaw, Michigan store about 10:00 p.m. on the night of December 18, 1962 after making several purchases, when Earl Reinhardt, a private policeman on duty that night in the defendant's store, called to her to stop as she was walking to her car about 30 feet away in the adjacent parking lot.

Reinhardt motioned to the plaintiff to return toward the store, and when she had done so, Reinhardt said that someone in the store had told him the plaintiff had put three pieces of costume jewelry into her purse without having paid for them. Mrs. Bonkowski denied she had taken anything unlawfully, but Reinhardt told her he wanted to see the contents of her purse. On a cement step in front of the store, plaintiff emptied the contents of her purse into her husband's hands. The plaintiff produced sales slips for the items she had purchased, and Reinhardt, satisfied that she had not committed larceny, returned to the store.

Plaintiff brought this action against Earl Reinhardt and Arlan's Department Store, seeking damages on several counts. She complains that as a result of defendant's tortious acts she has suffered numerous psychosomatic symptoms, including headaches, nervousness, and depression. Arlan's Department Store filed a third-party complaint against Earl Reinhardt's employer, Gerald Kaweck, doing business as Michigan Security Police Service, who defaulted. On the counts of false arrest and slander the case went to the jury, who returned a verdict of $43,750. The defendant's motions for judgment notwithstanding the verdict, remittitur, and new trial were denied by the trial court.

Numerous errors are alleged on appeal; we consider those necessary to the disposition of the case.

We conclude the plaintiff established a case entitling her to go to the jury on a charge of false arrest.^[1] But we conclude on the record before us that the cause of action on the ground of slander was not established with legal sufficiency because, as will be discussed infra, the proofs were not adequate to permit a jury's finding of publication, an essential element of a cause of action for slander.^[2] Therefore there must be a new trial.

We first consider briefly the issue whether defendant, Arlan's Department Store, can be held responsible for the acts of Earl Reinhardt,^[3] the private policeman employed by Michigan Security Police Service. Defendant Arlan's Department Store had contracted with the third-party defendant to provide private police protection in its Saginaw store. The record makes it clear that the apprehension of shoplifters was within the scope of Earl Reinhardt's authority and that, during the time he was on duty in the defendant's store, his activities were under the direction of Arlans' supervisory employees. Therefore, we agree with the learned trial judge that Earl Reinhardt, with respect to the incident giving rise to this action, was acting within the scope of his authority as the agent of Arlan's Department Store, which must respond for his acts.^[4]

Defendant contends the charge of false arrest was erroneously allowed to go to the jury. There is dispute whether or not the judge's final instruction to the jury actually included the charge of false arrest. We think it did. The trial court, in setting forth the claims of the parties to the jury, said:

"Briefly, this is an action brought by the plaintiff against the Arlan's Department Store in which she claims damages for slander and false arrest, and before the attorneys introduce any evidence, each of the attorneys will make a full and fair statement of their case and the facts they intend to prove, but I merely briefly tell you what this case is about. The Arlan's Department Store denies any slander or false arrest and therein lies the issue which you people are to decide." (Emphasis supplied.)

And we find in the trial judge's clear and careful instruction to the jury at the close of the evidence:

"Defendant Arlan's Department Store claims that if Earl Reinhardt did stop the plaintiff that according to her testimony he only detained her for a period of four minutes and did not attempt to arrest her." (Emphasis supplied.)

Although the trial court in its final instruction to the jury did not elaborate on this charge of false arrest that it had mentioned to the jury at the outset of the case and early in the charge, nevertheless at no point did the court remove the charge from the jury's consideration, and therefore we conclude that in fact the charge of false arrest was left to them for consideration in their deliberations.

When Reinhardt called to the plaintiff to stop, he was clothed in the blue and black of a police officer,^[5] and was wearing a badge inscribed "Michigan Security Police".^[6] These are facts warranting submission to the jury of the charge of false arrest.

Hill v. Taylor (1883) 50 Mich. 549, argued by defendant, although not factually on point since it involved the problem of an arrest by a police officer on an invalid warrant, nevertheless provides dictum of Justice CAMPBELL useful to our consideration of the issue of false arrest involved here. Justice CAMPBELL said:

"There can be no such thing as an action for false imprisonment^[7] where the plaintiff has not been arrested; and while, as has been held, manual seizure is not necessary, there must be that or its equivalent in some sort of personal coercion." 50 Mich. 549, 552. (Emphasis supplied.)

From the facts of the incident established at trial, a jury could find such implicit coercion as would support a finding of that unlawful restraint of freedom of action which lies at the heart of a cause of action for false arrest. See also Justice CAMPBELL'S opinion in Brushaber v. Stegemann (1871) 22 Mich. 266. Therefore on remand this allegation may go to the jury in accordance with the rule we now set down.

To the common-law tort of false arrest, privilege is a common-law defense, and we recognize as applicable here a privilege similar to that recognized by the American Law Institute in the Restatement of Torts, 2d. In section 120A, the Institute recognizes a privilege in favor of a merchant to detain for reasonable investigation a person whom he reasonably believes to have taken a chattel unlawfully. We adopt the concept embodied in section 120A, and we state the rule for this action as follows: if defendant Arlan's agent, Earl Reinhardt, reasonably believed the plaintiff had unlawfully taken goods held for sale in the defendant's store, then he enjoyed a privilege to detain her for a reasonable investigation of the facts.

The Commissioners' comment states the strong reason behind recognizing such a privilege:

"The privilege stated in this section is necessary for the protection of a shopkeeper against the dilemma in which he would otherwise find himself when he reasonably believes that a shoplifter has taken goods from his counter. If there were no such privilege, he must either permit the suspected person to walk out of the premises and disappear, or must arrest him, at the risk of liability for false arrest if the theft could not be proved." 1 Restatement of Torts, 2d, page 202.

That the problem of shoplifting, faced by merchants, has reached serious dimensions is common knowledge, and we find compelling reason to recognize such a privilege, similar to that recognized in other jurisdictions. Collyer v. S.H. Kress Co. (1936), 5 Cal 2d 175, (54 P2d 20); Montgomery Ward & Co., Inc. v. Freeman (CA 4, 1952), 199 F2d 720.

In Montgomery Ward & Co., Inc. v. Freeman, the United States Court of Appeals for the Fourth Circuit, in a case arising in Virginia and involving a detention considerably longer than the detention here of Mrs. Bonkowski, reversed a verdict for the plaintiff because of the trial court's too narrow instruction on the point of justifiable detention and sent the case back, stating that "the instruction should submit the reasonableness of the detention to the jury and should set out the facts which, if found, would constitute reasonable grounds for the defendant's conduct." 199 F2d 720, 724.^[8]

The privilege we recognize here goes beyond that set forth in the Restatement, for the Commissioners there stated a caveat that "the Institute expresses no opinion as to whether there may be circumstances under which this privilege may extend to the detention of one who has left the premises but is in their immediate vicinity." 1 Restatement of Torts, 2d page 202.

In their comment, the Commissioners state that, by their caveat, in the absence of express authority, they intended to leave the question open. 1 Restatement of Torts, 2d, page 204. We think the privilege should be so extended here because we think it entirely reasonable to apply it to the circumstances of the case at bar, for the reason that a merchant may not be able to form the reasonable belief justifying a detention for a reasonable investigation before a suspected person has left the premises. In Montgomery Ward, supra, the court recognized the privilege as applicable even though the plaintiff was stopped by a manager after she had left the store.

On remand on the cause for false arrest, therefore, it will be the duty of the jury to determine in accordance with the rule we have set down, whether or not the defendant's agent, Earl Reinhardt, reasonably believed the plaintiff had unlawfully taken any goods held for sale at the defendant's store. If the jury finds the defendant's agent did so reasonably believe, then it must further determine whether the investigation that followed was reasonable under all the circumstances. If the jury finds the defendant does not come within this privilege, then from the facts as discussed above, it could find a false arrest.

The allegation of slander poses further difficulty. We do not question that what took place in the parking lot adjacent to defendant's store on December 18, 1962, could sustain a jury finding of actionable slander. The Pennsylvania Supreme Court, in Bennett v. Norban (1959), 396 Pa 94, 98 (151 A2d 476, 478), said of a similar incident:

"The direction to remove her [plaintiff's] coat, the question about her pockets, the action of feeling in them and then searching her purse: these events formed a dramatic pantomime suggesting to the assembled crowd that appellant was a thief."

We concur in this analysis and consider that the facts here could support a jury's finding of a "dramatic pantomime". See 71 ALR2d 808 "Defamation by Acts", 3 Restatement of Torts § 568(2).

However, publication, an essential element of the tort of slander, was not established with legal sufficiency so as to make this charge proper. The testimony at trial established that, at the time of the incident, in addition to plaintiff's husband, Frank Bonkowski, there were other persons present in the parking lot.

Unquestionably, according to the general principle, publication to a spouse of defamatory matter is sufficient to give rise to a cause of action for slander.^[9] Publication to one spouse, for example, of an imputation of adultery by the other spouse, is defamation of a most serious kind. But in the instant case, publication to plaintiff's husband was not sufficient for the reason that, under the facts adduced at trial, there was no possibility that the defendant's agent defamed the plaintiff in the eyes of her husband. The testimony brought out that it was plaintiff's husband who paid the cashier for the items of costume jewelry plaintiff was suspected of taking unlawfully. At the scene in the parking lot, when Earl Reinhardt had stopped Mrs. Bonkowski and informed her of his suspicion, Frank Bonkowski responded "show him". Frank Bonkowski was familiar with all of the facts of the transaction and knew full well his wife had not committed the crime of larceny. The purpose behind the law of libel and slander is the protection of reputation, and the gravamen of an action for slander is damage to reputation.^[10] Here what took place could not possibly have damaged plaintiff's reputation in the eyes of her husband, and therefore, with respect to him, plaintiff was not slandered.

In Linck v. Driscoll (1895), 13 Ind App 279 (41 N.E. 463), the Indiana court of appeals affirmed a verdict for the plaintiff-wife accused of stealing eggs by the defendant-merchant although the defamation was published only to plaintiff's husband who had not been present during the defamatory incident. The court's opinion in Linck, however, provides the inference that the proof of publication would not have been adequate and the result might have been different if the husband had been present during the incident and had therefore been familiar with the facts of the transaction, knowing his wife had not committed larceny. We find the facts here call for such an interpretation and such a result. Other cases interpreting the requirement of publication when only one third party was present to hear a slander can be found in 92 ALR2d 230, 237, § 9.

Testimony at trial established that there were other persons present in the parking lot at the time of the incident. But the plaintiff responded in the negative to defense counsel's question whether or not she knew or could identify anyone who had been present. The testimony of only one person, Mrs. Elaine Filiatraut, plaintiff's neighbor, could provide any possible inference that there had been a publication of the slander. Mrs. Filiatraut's testimony went principally to the injury alleged by the plaintiff; she merely testified that, whereas plaintiff had been a jolly, outgoing person, active in school, church, and neighborhood activities, after the incident Mrs. Bonkowski became depressed and introverted. Mrs. Filiatraut had no idea from whom she had heard of the incident. Her testimony is at least as consistent with the inference that she had learned of it from the plaintiff herself, her neighbor and friend of many years, as it is consistent with the inference that she learned of it from someone who witnessed the incident and who recognized the plaintiff. A plaintiff cannot recover for a defamatory statement made by a defendant, if it is the plaintiff, and not the defendant, who publishes the defamatory matter to third persons. Shinglemeyer v. Wright (1900) 124 Mich. 230; Wilcox v. Moon (1892) 64 Vt 450 (24 A 244); 92 ALR2d 219.

The testimony of Mrs. Filiatraut, therefore, cannot establish the requisite element of publication, for as the Supreme Court ruled through the opinion of Justice EDWARDS in Poledna v. Bendix Aviation Corporation (1960), 360 Mich. 129, concerning proof of damages in an action for slander, a jury cannot be allowed to speculate by piling inference upon inference. Causal links must be forged by evidence; they cannot be fabricated out of speculations.

Our ruling here does not mean to suggest that requisite publication of slander may never be presumed, as it can be in the case of publication of libel in a newspaper. Steketee v. Kimm (1882), 48 Mich. 322. But the proofs here do not suffice.

In Tocker v. Great Atlantic & Pacific Tea Company (1963), 190 A2d 822, involving a defamation with facts similar to those before us, the court of appeals of the District of Columbia held that merely establishing the presence of others does not sustain the requisite burden of proof of publication. Since damage to reputation is the gravamen of an action for slander, there must be proof that the alleged defamation was published to someone who at least recognized the plaintiff. For other analogous interpretations of the requirement of publication, see Enright v. Bringgold (1919), 106 Wash 233 (179 P. 844); Gnapinsky v. Goldyn (1957), 23 NJ 243 (128 A2d 697).

Defendant questions the admissibility of the testimony of Anthony Zarlengo, a former employee of Michigan Security Police Service who had been on guard in defendant's Saginaw store in December, 1962. He testified that a contest was conducted among the private policemen at defendant's store to spur them on to increased numbers of apprehensions of shoplifters, and that bonuses were awarded to those making record numbers of apprehensions. We think the testimony should be admissible since it is relevant to the question whether defendant's agent, in calling to and stopping plaintiff, acted on reasonable belief or was actuated by malice. Objection is made that it was not shown Earl Reinhardt was aware of the contest, but we think it would be a fair and permissible inference for the jury to make that, if Reinhardt was a regularly employed guard in defendant's store, he would have been aware of the contest.

Defendant objects to certain other of the trial court's instructions to the jury, but from our review we conclude the learned trial judge was entirely correct in these instructions.

On motion for new trial and on this appeal, defendant attacks the verdict on the ground that James Bell, who served as foreman of the jury which returned the verdict for $43,750, had once been involved in a shoplifting incident. Defendant charges the verdict is grossly excessive and betrays the passion and prejudice of an inflamed jury. Our disposition of the case renders consideration of these issues unnecessary.

Reversed and remanded for new trial in accordance with this opinion. The award of costs to await final determination of the cause.

JOHN W. FITZGERALD, P.J., and BURNS, J., concurred with NEAL E. FITZGERALD, J.

NOTES

[1] Although the distinctions are not always clearly set out in the authorities, false arrest, or unlawful arrest, is a species of the common-law action for false imprisonment. See 1 Restatement of Torts, 2d, § 35, comment a. For a helpful analysis of the tort of false imprisonment, see the editor's annotation in the footnote of Josselyn v. McAllister (1872), 25 Mich. 45.

[2] See, generally, Harper and James, the Law of Torts, Libel and slander.

[3] Earl Reinhardt died before trial. No question was raised at trial regarding the applicability to the testimony of the "dead man's statute" then in force, CLS 1961, § 600.2160 (Stat Ann 1962 Rev § 27A.2160), repealed by PA 1967, No 263, effective November 2, 1967. Since the statute, regulating the admissibility of evidence at trial, does not affect the substantive cause of action, the new trial will be governed by the new statute, PA 1961, No 236, § 2166, as added by PA 1967, No 263 (MCLA § 600.2166, Stat Ann 1968 Cum Supp § 27A.2166) effective November 2, 1967. This statute will not pose difficulty at the new trial because of the important newly added clause "unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim." The testimony of plaintiff was supported by the corroborating testimony of her husband, and therefore the fact of Reinhardt's death should not render inadmissible the plaintiff's testimony regarding the incident giving rise to the action.

[4] See 92 ALR2d 15, "Principal's Liability for False Arrest or Imprisonment caused by Agent or Servant."

[5] It is not clear on the record whether or not Reinhardt was carrying a gun at the time of the incident, but this is not determinative, since even absent a gun, the facts present a case for the jury.

[6] No suggestion is made in the record that Reinhardt was deputized by any police authority.

[7] As stated supra, note 1, false or unlawful arrest is a species of the common-law action for false imprisonment.

[8] In certain jurisdictions, the legislatures have crystallized into statutory enactments the privilege recognized in the above cases in the form of a common-law defense. For cases interpreting such statutes, see 86 ALR2d 435.

Compare this common-law privilege with the legislative enactment, CLS 1961, § 600.2917 (Stat Ann 1962 Rev § 27A.2917) in which the Michigan legislature has regulated what are awardable damages in actions such as this. The trial court correctly instructed the jury on the applicability of the statute in this action.

[9] Harper and James, the Law of Torts, § 5.15.

[10] Harper and James, the Law of Torts, § 5.15; Lyle v. Clason (NY, 1804), 1 Cai. Cas. 581.